Sierra Club v. Mosier

The Kansas Supreme Court upheld a 2014 addendum to a 2010 Prevention of Significant Deterioration (PSD) permit issued by the Kansas Department of Health and Environment (KDHE) for construction of a new coal-fired electric generating unit. KDHE issued the 2010 permit several weeks before the effective date of federal regulations requiring greenhouse gas emissions limits in PSD permits for certain sources. In 2013, the Kansas Supreme Court remanded the 2010 permit to KDHE to apply federal standards for nitrogen dioxide and sulfur dioxide. In its 2013 opinion, the court noted that KDHE would also have to apply the mercury and air toxics standards that had gone into effect during the pendency of the litigation but indicated that the scope of other issues to be considered on remand would be determined by KDHE. On remand, KDHE elected to omit greenhouse gas limits on the grounds that it had stayed the effect of regulations that would have invalidated the approval to construct after 18 months and had not issued a new permit. In Sierra Club’s challenge to the addendum, the court rejected the argument that the addendum was required to incorporate the greenhouse gas regulations that went into effect after issuance of the 2010 permit. The court said its 2013 opinion had not vacated the 2010 PSD permit and had left KDHE with discretion to make “broad determinations” regarding the scope of remand proceedings. The court said that Sierra Club had not established that the addendum constituted a new permit and found that Sierra Club had failed to establish that KDHE’s decision not to include greenhouse gas limits erroneously interpreted or applied the law, was not supported by substantial evidence, or was unreasonable, arbitrary, or capricious.